February 11, 2009

The persistent problems with fast-track disparity after Booker and Kimbrough

One (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts. Before Kimbrough, the circuits had generally ruled that district court's lack discretion to provide such reductions without the blessing of the government. After Kimbrough, this issue has divided the circuits.

As evidenced by a recent district court opinion sent my way be a helpful reader, at least one district judge seems eager to have this issue reviewed with greater focus in light of current jurisprudential and fast-track realities. The opinion in US v. Sanchez-Gonzalez, No. 08 CR 609 (N.D. Ill. Feb. 9, 2009) (available for download below), concludes this way:

Galicia-Cardenas and Martinez-Martinez are, of course, binding on this Court. Mr. Sanchez-Gonzalez argues, however, that the Supreme Court’s intervening decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), permits the Court, despite the Seventh Circuit’s decisions, to consider fast-track disparities as unwarranted within the meaning of section 3553(a)(6). The Court disagrees. The Supreme Court concluded in Kimbrough that a district court may base an outside-the-Guidelines sentence on its disagreement with the Sentencing Commission’s policy decisions. The Court did not conclude, however, that a district court may base its sentence on its disagreement with Congressional directives. Indeed, the Court took some pains in Kimbrough to point out that the policy decision at issue there – the Sentencing Commission’s adoption, in the Guidelines for narcotics cases, of a 100-to-1 ratio treating every gram of crack cocaine as the equivalent of 100 grams of powder cocaine – was not the result of an express legislative directive, id. at 570-71, or even an implied legislative directive, id. at 572-73.

This Court continues to believe, as a matter of policy, that it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal reentry case is charged. And one can legitimately take issue with the proposition that all fast-track reductions in illegal reentry cases are the product of Congress’ policy statement in the PROTECT Act and the companion legislative report cited by the Seventh Circuit. As this Court pointed out in Medrano-Duran, and as reemphasized by the data defense counsel have submitted in the present case, a number of so-called fast-track reduction programs operate outside the bounds of Congress’ directive to the Sentencing Commission and Sentencing Guideline § 5K3.1. See Medrano-Duran, 386 F. Supp. 2d at 946-47. That was part of the basis for this Court’s determination in Medrano-Duran that it was appropriate to consider such disparities in determining whether to impose a below-Guidelines sentence.

One might also legitimately argue that nothing in the PROTECT Act nor the legislative report cited in Martinez-Martinez amounts to express or implied legislative disapproval of deviation from the Sentencing Guidelines based on inter-district disparities resulting from the Department of Justice’s determination to adopt fast-track programs in some districts but not others. See United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008). But the Seventh Circuit has taken a different course, and until it or the Supreme Court concludes otherwise, the choice is not one this Court is permitted to make.

For these reasons, the Court concludes that it is not permitted to consider, in imposing sentence in this case, the fact that a fast-track or early disposition program is not available in this District.